93 Decision Citation: BVA 93-00161 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-51 454 ) DATE ) ) ) THE ISSUES 1. Entitlement to restoration of a 20 percent disability evaluation for bilateral sensorineural hearing loss. 2. Entitlement to an evaluation in excess of 20 percent for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and spouse ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from February 1943 to February 1946. This case came before the Board of Veterans' Appeals (hereinafter Board) on appeal of a March 1989 rating decision by the Cleveland, Ohio, Regional Office (hereinafter RO), which reduced the appellant's disability evaluation for his service-connected bilateral sensorineural hearing loss from 20 percent to 10 percent. The notice of disagreement was received in April 1989. A statement of the case was issued in July 1989. The substantive appeal was received in September 1989. The appellant and his spouse provided testimony at a personal hearing conducted at the RO in January 1990. The hearing officer rendered a decision in March 1990. Supplemental statements of the case were issued in April 1990 and September 1990. The case was received and docketed at the Board in December 1990, at which time it was referred to the appellant's representative, Disabled American Veterans, who submitted a statement in support of the appellant's claim in January 1991. In a June 1991 decision, the Board denied the appellant's claim of entitlement to an evaluation in excess of 10 percent for bilateral sensorineural hearing loss. He appealed that decision to the United States Court of Veterans Appeals (hereinafter Court) in August 1991. In a November 1991 memorandum decision, the Court reversed the June 1991 Board decision and remanded the case for proceedings consistent with the Court's decision in Fugere v. Derwinski, 1 Vet.App. 103 (1990). Subsequent to the Court's November 1991 decision, the case was stayed at the Board under authority recognized in Tobler v. Derwinski, 2 Vet.App. 8 (1991), pending the appeal of the Fugere decision by the United States Department of Justice to the United States Court of Appeals for the Federal Circuit. In August 1992, the United States Court of Appeals for the Federal Circuit affirmed the Court's decision. Fugere v. Derwinski, 972 F.2d 331 (Fed. Cir. 1992). In October 1992, the United States Court of Appeals for the Federal Circuit denied the request by the Secretary of the Department of Veterans Affairs (hereinafter VA) for a rehearing en banc. In November 1992, the General Counsel for the VA decided not to pursue an appeal of the Fugere decision to the United States Supreme Court. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the RO committed error in its March 1989 rating decision when it reduced the disability evaluation for his service-connected bilateral sensorineural hearing loss from 20 percent to 10 percent. He argues that such a reduction was precluded by M21-1, Part I, paragraph 50.13(b). DECISION OF THE BOARD In accordance with the decision of the Court in Fugere, and its affirmance by the United States Court of Appeals for the Federal Circuit, it is the decision of the Board that the March 1989 rating decision erroneously reduced the appellant's disability evaluation for his bilateral sensorineural hearing loss. Therefore, a 20 percent evaluation is restored. In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to a disability evaluation in excess of 20 percent for bilateral sensorineural hearing loss. FINDINGS OF FACT 1. The reduction of the appellant's 20 percent disability evaluation for bilateral sensorineural hearing loss to 10 percent, by a March 1989 rating decision, was improper. 2. Bilateral sensorineural hearing loss is manifested by hearing acuity levels of III in the right ear and IV in the left ear. CONCLUSIONS OF LAW 1. A 20 percent evaluation is warranted for bilateral sensorineural hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85, 4.87, Diagnostic Code 6290 (effective prior to December 18, 1987); Fugere v. Derwinski, 1 Vet.App. 103 (1990). 2. The schedular criteria for a disability evaluation in excess of 20 percent for bilateral sensorineural hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6102 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. § 5107(a) have been met, in that the appellant's claim is well grounded and adequately developed. I. Restoration of a 20 Percent Evaluation for Bilateral Sensorineural Hearing Loss Prior to the March 1989 rating decision, the appellant's bilateral sensorineural hearing loss was rated 20 percent disabling, based on the criteria in 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6290, that was in effect at the time of a March 1979 rating decision that increased the evaluation from noncompensable to 20 percent. The March 1989 rating decision, which reduced the evaluation to 10 percent, was based on the findings of a VA audiometric evaluation conducted in November 1988 as applied to new rating criteria and testing methods for bilateral defective hearing that had become effective December 18, 1987. However, a provision in the VA's Adjudication Procedure Manual stated that if a decrease in evaluation of defective hearing was due to changed criteria or testing methods, rather than a change in the appellant's hearing acuity, then apply the old criteria and make no reduction. VA Adjudication Procedure Manual, M21-1, Part I, paragraph 50.13(b). Evaluations of bilateral hearing loss range from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of Department of Veterans Affairs regional office or authorized audiology clinic examinations. 38 C.F.R. 4.85 and Part 4, Codes 6277 to 6297; effective prior to December 18, 1987. As the facts of this case show that the reduction of the evaluation for the appellant's bilateral sensorineural hearing loss by the March 1989 rating decision was based on application of audiometric findings resulting from new testing methods, such reduction was in contradiction of M21-1, Part I, paragraph 50.13(b), and, therefore, improper. Hence, in accordance with the decision in Fugere, the Board finds that the appellant's evaluation for his bilateral sensorineural hearing loss is restored to 20 percent, as of the date of reduction, which was June 1, 1989. II. A Disability Evaluation in Excess of 20 Percent for Bilateral Sensorineural Hearing Loss Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometric tests at the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from bilateral defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110, effective December 18, 1987. A 30 percent evaluation for bilateral sensorineural hearing loss is assigned when the combination of hearing acuity levels in both ears is at least at levels IV and IX, V and VII, or VI and VI. Review of the history of the appellant's bilateral sensorineural hearing loss shows that it was initially manifested in service. Clinical findings from a VA audiological evaluation conducted in November 1988 demonstrated hearing acuity levels of IV in the right ear and III in the left ear. Hearing acuity levels were shown to be at IV for each ear on VA audiological evaluation conducted in December 1989. A VA audiological evaluation conducted in May 1990 revealed average pure tone thresholds of 64 and 59 decibels in the right and left ears, respectively, for the frequencies at 1,000, 2,000, 3,000 and 4,000 cycles per second. Speech recognition ability at that time was 86 percent correct in the right ear and 76 percent correct in the left ear. Those findings indicate hearing acuity at level III in the right ear and level IV in the left ear. This combination of hearing acuity levels is evaluated as 10 percent disabling under 38 C.F.R. 4.87. The testimony provided by the appellant and his spouse at the January 1990 personal hearing has been considered, and it is clear that the appellant has hearing impairment. However, the current rating compensates for the degree of impairment based on the testing results for hearing acuity levels. When those results are applied to the rating criteria, an evaluation greater than 20 percent is clearly not warranted. Therefore, as the recent audiometric findings show that the appellant's degree of organic hearing loss, evaluated on the basis of actual loss of hearing acuity, does not indicate a level of severity warranting an evaluation in excess of 20 percent under the applicable law and regulations, the Board is unable to identify a reasonable basis for a grant of an evaluation in excess of 20 percent for bilateral sensorineural hearing loss. The disability picture presented in this case is not so unusual as to render impractical the schedular rating criteria. Thus, a higher rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321. ORDER Restoration of a 20 percent disability evaluation for bilateral sensorineural hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 20 percent for bilateral sensorineural hearing loss is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.